Midterm Review

Question 1

What was the “doctrine of bad tendency” that guided judicial approaches to the First Amendment in the early 20th century?

Answer 1

Permits the government to stop speech before it had the chance to be effective

Question 2

What was the Espionage Act and how did it regulate certain forms of free speech?

Answer 2

Punished speech intending to:
- interfere with the operation of the military
- promote the success of the nation’s enemies
- attempt to cause insubordination, disloyalty, or mutiny among military
- interfere with the draft
Any anti-war protest

Question 3

Schenck v. United States (1919)

Answer 3

• Schenck distributed leaflets speaking out against the draft
  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic… The question in every case is whether the words used… create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent”
• Combines bad tendency doctrine and clear and present danger
• Supreme Court ruled on March 3, 1919, that the freedom of speech protection afforded in the U.S. Constitution’s First Amendment could be restricted if the words spoken or printed represented to society a “clear and present danger.”

Question 4

Abrams v. United States (1919)

Answer 4

• individuals tossed 2 russian anti war leaflets out the window
  “… by free trade in ideas - that the best test of truth is the power of thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out.”
• Convicted for violating the Espionage Act.

Question 5

Gitlow v. New York (1925)

Answer 5

• Gitlow, a socialist, was arrested in 1919 for distributing a “Left Wing Manifesto” that called for the establishment of socialism through strikes and class action of any form.
• Trying to circulate socialist pamphlet
• incitement is in the eye of the beholder
• every idea is an incitement
  With Gitlow, the Court ruled that the Fourteenth Amendment’s guarantee that individuals cannot be ”deprived of liberty without due process of law” applies free speech and free press protections to the states.

Question 6

Whitney v. California (1927)

Answer 6

• Charlotte Anita Whitney, a founding member of the Communist Labor Party of California, was prosecuted under California’s Criminal Syndicalism Act for helping to organize a group that sought to effect economic and political change through the unlawful use of violence. Whitney argued that she had not intended the organization to act this way and did not plan to aid it in those objectives. She claimed the California law violated the First Amendment.
• words with a “bad tendency” can be punished.
• Court sustained her conviction

Question 7

Dennis v. United States (1951)

Answer 7

1951 Dennis violated Smith Act as secretary of communist party, convictions upheld. landmark: justices discussed distinction between discussion and advocacy of revolution. Announced Smith Act is constitutional. dissent advocated clear-and-present-danger and unconstitutionality of Smith Act.
- Resulted in a Bad Tendency rule that could be applied to suppress a speech during times when the country confronted a great evil such as communism.

Question 8

Yates v. United States (1957)

Answer 8

1957 Oleta Yates convicted under Smith Act for involvement w/ communism in california. decision overturned by supreme court!! because first ruiling failed to distinguish between advocating ideas and action. Landmark: distinguished between action and ideas. dissent argued that Smith Act is unconstitutional. Last appeal that was heard in Supreme Court involving the Smith Act!

Question 9

Brandenburg v. Ohio (1969)

Answer 9

• Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”
• “… the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
• Not a crime is ambiguous
• Intent is very hard to prove
• Extends the first amendment to speech that had not been previously protected
• the Supreme Court established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.”

Question 10

Degree-of-Danger Continuum

Answer 10

bad tendency, clear and present danger, incitement (iminent and likely to occur).

Question 11

What was the Smith Act, and what did it seek to punish?

Answer 11

1940 Aka Alien Registration Act. following attacks on Pearl Harbor, punished speech attempting to create disloyalty w/in military, advocating overthrowing the government, conspiring w/ another person to violate the act.

Question 12

Since 1969, how have the courts generally weighed in and decided the following issues:
Criticizing public officials

Answer 12

• Must prove that the messages were communicated with ‘actual malice’
• made it difficult to prove defamation

Question 13

Since 1969, how have the courts generally weighed in and decided the following issues:
Public threats made against individuals

Answer 13

• it is illegal to “knowingly and willfully” threaten the life of the president, vice president, president-elect, and the vice president elect, as well as any other officer ‘next in order of succession to the office of the President of the United States.”
• Difficult to distinguish true threats from exaggerated rhetoric or hyperbole.

Question 14

Since 1969, how have the courts generally weighed in and decided the following issues:
Releasing of government secrets

Answer 14

It became a crime for not only former government officials who had authorized access to classified information, to publish the identities of secret agents “in the course of a pattern of activities intended to identify and expose” such agents for the purpose of impairing “the foreign intelligence activities of the United States.”

Question 15

Since 1969, how have the courts generally weighed in and decided the following issues:
Publishing of instructional manuals that could lead to criminal action

Answer 15

The courts have held that the first amendment does not protect speech that aids or abets a crime.

Question 16

Since 1969, how have the courts generally weighed in and decided the following issues:
Compelling speech

Answer 16

protects an individual from being required to utter or otherwise express a thought with which they disagree. The courts tend to agree with this.

Question 17

What is the USA Patriot Act, and how did it impact First Amendment rights in post-9/11 America?

Answer 17

• Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
• expands the power of government officials to gather intelligence and investigate anyone suspected of terrorism
• Increased government surveillance significantly

Question 18

What is defamation in general? How was it treated in common law? What was the difference between slander and libel in that tradition?

Answer 18

Defamation is speech that tends to lower a person’s reputation before others, causes that person to be shunned or exposes that person to hatred, contempt, or ridicule.

• Libel is printed defamation
• Slander is spoken defamation
• Involves state law, usually not federal law.

Question 19

Libel Per Se

Answer 19

Statements that are defamatory on their face including:

• statements accusing someone of criminality
• asserting that someone has an infectious disease
• attacking one’s reputation in their business or trade
• charging someone with sexual immorality

Question 20

Libel Per Quod

Answer 20

• Libelous in a specific context

- If unpublished info known by the readers makes published info defamatory in context

Question 21

What are the basic conditions of a defamation case?

Answer 21

Defamation: a message must expose someone to hatred, ridicule, or contempt
Publication: communicated to a third party by voice, print, or other means
Identification: the offended party must be specific and identifiable
Fault: public officials and persons must prove ‘actual malice’

Question 22

What are the common defenses in a defamation case?

Answer 22

1. Truth of utterance
2. Tarnished reputation
3. Privileged communication

Question 23

How are damages determined in a defamation case?

Answer 23

Actual damages: calculated in a precise way
General damages: subjectively decided based on seriousness of harm
Punitive damages: assessed to punish defendants for particular offensive speech

Question 24

What is the charge of group libel? Why are such cases difficult to win these days?

Answer 24

Group defamation is a form of political expression that would likely be protected. They are difficult to win these days because of the ruling in the New York Times v Sullivan case.

Question 25

New York Times v. Sullivan

Answer 25

• Ad posted in NY Times editorial said that Montgomery police ringed the Alabama State College Campus, after they protested at State Capitol Steps. Sullivan, city commissioner filed a libel action against the newspaper and four black ministers who endorsed the ad claiming it defamed him. Sullivan won the case in Alabama Supreme Court.
• Supreme court reversed this and said actual malice had to be proven
• Held that statements about public figures are libelous only if made with malice and reckless disregard for the truth.
• Extended first amendment protection for defamation of public figures
• Granted 1st A protection to editorial ads

Question 26

Gertz v. Welch

Answer 26

• Reversed decision of U.S. Court of Appeals that was found in favor of Gertz. Actual malice standard does not have to be met for a private person, even if the subject matter of the defamatory communication is in the public interest.
• enhanced protections for private citizens
• Damages limited to actual injury

Question 27

The Supreme Court in Sullivan protected a class of defamation directed at public officials. How did that definition of “public officials” develop in later cases? In other words, who fell under the categories of “public officials” and “public figures”? How did the court later distinguish between all-purpose public figures, limited public figures, involuntary public figures, and even private citizens?

Answer 27

Public officials included public figures. Public officials are government employees. Public figures are worldwide known people.
- Limited purpose public figures: have only temporarily become active in some public issue. “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues”

Question 28

How would defamation law apply to online spaces? For instance, what is the distinction between the liability of publishers and distributors?

Answer 28

The same laws apply to defamation on the internet.
“No Provider or use or an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The provider is not liable.

Question 29

What is a SLAPP? Why do some consider them to be an abuse of power?

Answer 29

SLAPP is Strategic Lawsuits Against Public Participation. This is an abuse of power because it is not intended to protect reputation, but to silence critics by forcing them to spend time and money defending themselves in court.

Question 30

How does the US Constitution discuss privacy rights?

Answer 30

It doesn’t

Question 31

What are the four common law privacy torts?

Answer 31

• Intrusion on seclusion
• Disclosure of a private matter
• false light
• appropriation

Question 32

Intrusion on seclusion

Answer 32

Three conditions required:

• Defendant must have intruded on the plaintiff
• Must have happened where there is an expectation of privacy
• Intrusion must be highly offensive to a reasonable person

Question 33

Disclosure of a Private Matter

Answer 33

Three conditions required:

• Plaintiff must prove defendant publicized the matter
• The account must be offensive to the average person
• Story must be private information not on public record

Question 34

False Light

Answer 34

Three conditions required: 
- Portrayal must be widely distributed 
- The portrayal should be highly offensive to a reasonable person 
- Portrayal is made with malice 
Ex. Clickbait

Question 35

Appropriation

Answer 35

Your image belongs to you. 
Three conditions required: 
- Plaintiff's name or image were used 
- For purposes of advertising or trade 
- Plaintiff did not give consent

Question 36

What are the common defenses in privacy actions?

Answer 36

• The constitution
• Consent
• Newsworthiness and public interest

Question 37

How does the government’s rights to collect information on your internet activities (especially email) differ from a private employers’?

Answer 37

• The government must follow strict guidelines under the ECPA. However, these restrictions don’t apply to private employers.

Question 38

How have the courts decided lawsuits alleging emotional distress for defamation and violation of privacy?

Answer 38

They have ruled against those who are suing for emotional distress. The language used in both cases were categorized as hyperbolic language.

Question 39

What are the six kinds of relio-moral heresy?

Answer 39

• False Doctrine
• Irreverent expression
• Profane and disgusting speech
• Sexual communications of a sensual and erotic nature
• Scientific option and fact that challenges sexual and religious norms
• Non-conforming views on private morality

Question 40

False Doctrine

Answer 40

Teaching an incorrect religious belief concerning the basic tenets of faith

Question 41

Irreverent Expression

Answer 41

Cursing a deity or making fun of a religious figure

Question 42

How did the legal system target the teaching of evolution, and how did the court rule in the two famous “monkey trials” in Tennessee and Arkansas?

Answer 42

The legal system originally said that is was a crime to teach the theory of evolution in public schools. In the Tennessee money trial, Scopes was convicted for teaching Darwinism to his classes. In Epperson v Arkansas, the supreme court said that the monkey laws were unconstitutional.

Question 43

What was the Hicklin rule in common law, and how did it apply to obscenity?

Answer 43

“The test of obscenity in this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into those hands a publication of this sort may fall.”

• Does the work lead to impure thoughts?

Question 44

What was the “Roth Test” as developed in Roth v. United States? How did it apply to obscenity? How did the Roth test evolve?

Answer 44

Two part definition of illegal ‘obscenity’:

1. It is worthless or without redeeming social importance
2. It is sexually lewd
   - to the average person
   - applying contemporary community standards
   - the material is taken as a whole
   - and appeals to the ‘prurient interest’

Question 45

How did Miller v. California alter the “Roth Test” on obscenity?

Answer 45

The ‘utterly worthless’ requirement was discarded.A requirement was added that state laws be clear and specific in describing the type of sexual conduct covered by obscenity legislation.

Question 46

How did the Pacifica case regarding George Carlin’s infamous performance illustrate the FCC’s evolving treatment of indecency on public broadcasting?

Answer 46

This ruling said that indecent words are not to be aired during hours which children would be listening. Indecency in public broadcasting is allowed now during the hours of 10pm to 6am.

Question 47

Burstyn v. Wilson

Answer 47

New York’s attempt to prevent showing the film The Miracle on grounds of irreverence. The court ruled that it is “not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures”

Question 48

Roth v. United States

Answer 48

Samuel Roth was convicted for mailing obscene advertising. This decision determined for the first time that the Comstock Act’s obscenity provisions were constitutional. Set forth that obscenity is a form of expression that is worthless and sexually lewd.

Question 49

Miller v. California

Answer 49

Miller was convicted for disseminating advertising brochures containing explicit sexual illustrations. This case revised the Roth test by discarding the “utterly worthless” requirement and defining “contemporary community standards” to mean state or local standards.

Question 50

FCC v. Pacifica Foundation

Answer 50

A radio station played George Carlin’s satirical monologue “Filthy Words” which included seven words you cannot say. The court declared that his monologue was indecent but not legally obscene.

Question 51

Chaplinsky v. New Hampshire

Answer 51

Chaplinsky, a Jehovah’s Witness, called an officer “a damned Facist.” He was convicted.
The ruling recognized 2 kinds of expression:
- worthwhile speech
- Worthless speech, including
1. fighting words
2. lewd language
3. obscenity
4. profanity
5. libel
Fighting words cover language that inflicts injury upon the listener and incites immediate breach of the peace.

Question 52

Feiner v. New York

Answer 52

A college student gave a soap box speech about how the U.S. is racist. He called the mayor a “champagne sipping bum.” A police officer noticed things were getting rowdy and asked him to step off the box. He refused and got arrested.
The court ruled that speech that exceeds the “bounds of argument or persuasion” and creates a clear and present danger of inciting to riot is not protected by the constitution.

Question 53

Cohen v. California

Answer 53

Cohen wore a jacket that said “Fuck the draft” into a court room and was arrested. The supreme court reversed his conviction.
Three reasons for protecting shocking language:
1. no principle will let citizens know what words are acceptable and which are not.
2. provocative language serves to communicate ideas and emotions
3. state involvement in controlling language risks suppressing ideas.
Thus, shocking language is protected if:
- it is not obscene
- does not incite violence
- is not directed to an individual

Question 54

What are the harms of hate speech?

Answer 54

1. threat of immediate violence
2. offensiveness of the language to those who hear it
3. psychological hurt to individuals
4. long-term reinforcement of negative social attitudes (such as racism, sexism, and homophobia.)

Question 55

What legal remedies exist in the law to protect individuals and groups against hate speech?

Answer 55

There are no laws that mention hate speech.